The New Law on Joint Submissions

For a long time, if you asked a lawyer what was going to happen to them in court they would use the words “probably” and “likely”. They will still use those words today, however last October the Supreme Court of Canada (“SCC”) decided that trial judges should not depart from agreements made between Crown Counsel and Defence Counsel lightly.

 On October 21, 2016, the decision of R. v. Anthony Cook, 2016 SCC 43 was released by the SCC deciding that trial judges should not deviate from “Joint Submissions” except “where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.”

A Joint Submission is a formal agreement made between Crown Counsel and Defence Counsel on the sentence that an accused should receive after entering a guilty plea on a criminal charge. A joint submission is a legal term. The idea behind a Joint Submission is that Crown Counsel and Defence Counsel are in the best position to understand the case before them. This includes knowledge of potential problems with the admissibility of evidence, problems with the credibility and attendance of witnesses, the need for court resources to address evidentiary issues in voir dires, the number of files the accused has accumulated, and the efforts the accused has undergone to address underlying concerns relating to criminality. In other words, there are many issues that are discussed between counsel that remain behind closed doors on the negotiating table that never appear on the record in a courtroom.

That is the difficulty that befalls a judge when they are confronted with two counsel proposing a joint submission. A judge who views the sentence as too high or too low is not privy to the significant details that may exist behind the scenes but are not mentioned to the court.

Prior to this decision there were issues with using Joint Submissions because different judges had different opinions on their discretion and ability to depart from a joint submission. As a result, the joint submission lost its power to ensure a particular result.

In the case of R. v. Anthony Cook, the trial judge found that the sentence proposed by Crown Counsel and Defence Counsel was inappropriately low. Counsel’s joint submission was for 18 months with no probation order attached. The plea was to manslaughter, where the accused entered into a fight with the complainant. The complainant initially went up and pushed the accused. The accused and the complainant threw punches. The complainant backed off, while the accused threw two more punches which landed on the complainant’s head and neck causing him to fall backwards, crack his skull, lose consciousness and pass away at the hospital. The accused had a history of mental illness and drug addiction. He was experiencing mental health problems at the time of the offence and was detained under the Mental Health Act after his arrest.

The trial judge carefully considered the joint submission; however, he departed from it because the joint submission was based on a mistaken calculation of 6 months pretrial time that the accused was not entitled to and because there was no probation order attached, the public would not be protected upon his release. The trial judges reasons were justifiable.

The SCC wrestled with this decision and ultimately found that agreements between Crown and defence counsel “are commonplace and vitally important to the well-being of our criminal justice system as well as our justice system at large.”  The court recognized that a proper functioning justice system requires that lawyers be able to properly advise their clients and accurately predict the outcome after making an agreement. Otherwise, if the agreement is unpredictable the agreements will no longer continue. Agreements help the efficiency of the court system which helps the system as a whole.

The SCC decided that the Proper Test is the Public Interest Test, meaning that the joint submission should not be overruled by the trial judge unless “the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.” The court went on to describe a 5 part test for judges when considering departing from a joint submission.

There appears to be a significant move within the SCC to increase the efficiency of courts across Canada. There was a recent decision on July 8, 2016, R. v. Jordan 2016 SCC 27 which addresses unreasonable delay within the court system. R. v. Anthony Cook decision appears to continue the theme from the SCC that there is a need for predictability within the court system in order to move efficiently. This is a positive direction for the courts to take.

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